S. D. Texas rules Amazon is a "Seller" Under Texas Law; CDA Defense Only Applies to Failure to Warn Claims

In yet another ruling against Amazon, a federal court applying Texas law rules that Amazon is a “seller” as that term is defined by Texas’ statute on products liability, Chapter 82 of Tex. Civ. & Rem. Code. A personal injury suit was brought by the parents of an 18-month old child who swallowed a battery that fell out of a remote control. The remote was manufactured in China and sold on Amazon through the “Fulfillment by Amazon” platform. Plaintiffs asserted five causes of action, including a failure to warn (marketing defect). Amazon asserted that it was not a seller and therefore could not be strictly liable for the product. The court reasoned that Amazon was integrally involved in the chain of distribution and placed the product into the stream of commerce, making it a seller. Amazon also argued that even if it was a seller, the Communications Decency Act (“CDA”) barred the Plaintiff’s claims. The court held that while the CDA protected Amazon from the failure to warn argument for its online description of the remote, the CDA did not provide protection for the remaining claims against Amazon as a seller. McMillan v. Amazon, Inc., et al., 4:18-cv-2242, 2020 U.S. Dist. LEXIS 102025 (S. D. Tex. 2020). Amazon has appealed the decision.